Date: 20120607
Docket: IMM-8277-11
Citation: 2012 FC 709
Ottawa, Ontario, June 7, 2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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JUAN CARLOS BALLESTERO ROMERO
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant seeks judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board of Canada (the Board), dated
October 24, 2011, which found that the applicant was not a Convention (United
Nations’ Convention Relating to the Status of Refugees, [1969] Can
TS No 6) refugee nor a person in need of protection pursuant to sections 96 and
97 of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA).
[2]
The
Court informed the parties at the hearing on June 4, 2012 that despite the able
argument on behalf of the respondent, the application would be granted. These are the reasons
which underlie that decision. The decision below did not consider one of the
two central grounds in respect of which protection was sought, namely the
applicant’s fear of persecution based on his HIV-positive status. The Board
did not consider whether the systemic discrimination against HIV-positive persons
in employment amounted to persecution, and whether state protection was
available in relation to that persecution.
[3]
The
applicant, Juan Carlos Ballestero Romero, is a citizen of Venezuela. He alleged
fear of persecution based on his sexual orientation and HIV status. The
applicant and his partner, Rumaldo Antonio Rincon Ferrer (Rumaldo), fled Venezuela to Canada on April 26,
2010, and made refugee claims at the port of entry. After completing the
required immigration medical examinations the applicant and Rumaldo learned in
June 2010 that they were both HIV-positive.
[4]
Their
claims were initially joined but at their hearing on July 26, 2011,
the Board severed the claims because they were based on different factual
allegations. The applicant’s claim was refused on the basis that state
protection was available and that the applicant had a viable internal flight
alternative (IFA) in Caracas. Rumaldo’s claim was
also refused.
[5]
The
parties agreed that the issue raised by this application is whether the Board’s
decision is reasonable; Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190. I find that the Board’s decision was unreasonable because
the Board failed to consider the applicant’s alleged fear of persecution based
on his HIV status. The Board did not consider the applicant’s HIV status in
any part of its analysis except the reasonableness of the proposed IFA, and
even in that analysis, the Board failed to consider the evidence of systemic
discrimination in employment for HIV-positive persons. The Board’s analysis of
the employment issue occurs at paragraph 41:
The claimant’s representative
indicated that the claimant may be fired from any employment position in
Caracas, which was a reference to both his being HIV positive [sic];
however, the Panel notes that the Caracas metropolitan population is over 4
million residents and considering the claimant’s educational background and
work experience, the Panel believes he would be able to find employment in
Caracas. In consideration of these factors, the Panel finds that the IFA to Caracas would not constitute a
situation that would be unduly harsh for this claimant.
[6]
The
evidence before the Board in this case was that pre-screening for HIV by
employers is “almost impossible to avoid” in Venezuela and also
that HIV-positive individuals are frequently discriminated against in the
workplace. Thus, as the applicant submits, it was incumbent on the Board to
consider whether this discrimination amounted to persecution, as held by
Justice John O’Keefe in Rodriguez Diaz v Canada (Minister of Citizenship and
Immigration), 2008 FC 1243, para 33:
Furthermore, while the respondent
is correct in pointing out that lack of employment is generally not a
sufficient reason to determine that an IFA is unreasonable, barriers to
employment affect an HIV-positive Mexican in an uniquely discriminatory way.
The documentary evidence submitted by the applicant suggests that medical
testing for HIV status for employment purposes is prevalent in Mexico from factories to professional
positions. Despite the fact that the applicant has been successful in obtaining
positions in the past, the documentary evidence suggests that the applicant may
face restrictions in earning a livelihood because of his HIV status. In Xie
v. Canada (Minister of Employment and
Immigration)
(1994), 75 F.T.R. 125 (F.C.T.D.) systemic governmental inference with the
opportunity to find work was found to be a serious restraint on an individual.
In this case, the Board did not adequately address whether the applicant had
proven that systemic barriers associated with HIV testing and employment
amounted to persecution on a balance of probabilities. The interrelated aspects
of the applicant’s socio-economic status and HIV-positive status are important
considerations that the Board overlooked.
[7]
The
Board failed to determine whether the discrimination the applicant would face
as an HIV-positive individual seeking employment amounts to persecution, which
in turn was relevant to its conclusions regarding state protection and IFA. This
error renders the Board’s conclusion unreasonable and the application therefore
must be granted.
[8]
I
would note, in closing, that the respondent sought to rely on the Board
Member’s reasons in refusing Rumaldo’s refugee claim to help elucidate the
reasons in the decision under review. The respondent submitted that, pursuant
to the Supreme Court of Canada’s decision in Newfoundland and Labrador
Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62,
[2011] 3 S.C.R. 708, the reasons provided in refusing Rumaldo’s claim could help
this Court understand why the Board reached its conclusion in the applicant’s
claim.
[9]
In
my view, this is a bridge too far. While Newfoundland invites the Court
to refer to the record to better understand a decision-maker’s reasons, it does
not go so far as to permit reliance on a distinct set of reasons from another
case in which the same decision-maker may have done a better job of analyzing
the evidence before him or her. Thus, in determining this application, the
Court did not consider the Board Member’s decision in Rumaldo’s claim. The
merits of that decision will be considered independently in a separate judicial
review application. The Board’s decision refusing the applicant’s claim was
unreasonable in light of the record before it and the application must be
granted.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review be and is
hereby granted. The matter is referred back to the Immigration Refugee Board
for reconsideration before a different member of the Board’s Refugee
Protection Division. No question for certification has been proposed.
"Donald
J. Rennie"
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